WASHINGTON — Abortion providers in Texas asked the Supreme Court on Monday to block a state law banning abortions in the state as early as six weeks into pregnancy. The law, one of the most restrictive in the nation, is poised to go into effect on Wednesday.
If the Supreme Court does not intervene, lawyers for the providers said, access to abortion in Texas could largely end.
“In less than two days, Texas politicians will have effectively overturned Roe v. Wade,” said Nancy Northup, president of the Center for Reproductive Rights, which represents the providers along with other groups.
“We have filed an emergency motion in the Supreme Court to block this law before clinics are forced to turn patients away,” she said. “Patients will have to travel out of state — in the middle of a pandemic — to receive constitutionally guaranteed health care. And many will not have the means to do so.”
In their application, the abortion providers wrote that the law “would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85 percent of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close.”
The Texas law is at odds with Supreme Court precedents, which prohibit states from banning abortion before fetal viability, at about 22 to 24 weeks. But it has an unusual feature complicating efforts to challenge it in court.
Instead of making state officials responsible for enforcing the law, it allows private citizens to sue abortion providers and others who help women obtain the procedure. That help can include financial assistance or giving a woman a ride to a clinic.
The plaintiffs need not claim any connection to those they sue. If they prevail, the law entitles them to damages of at least $10,000, along with legal expenses.
The law, the providers told the Supreme Court, “attempts to replace normal civil-litigation rules and clearly established federal constitutional rules with distorted versions designed to maximize the abusive and harassing nature of the lawsuits and to make them impossible to fairly defend against.”
Taking state officials out of the equation complicated the providers’ efforts to challenge the law in court, as such officials are the usual defendants in suits seeking to block laws. The providers instead also sued, among others, every state trial court judge and county court clerk in Texas.
The defendants argued that abortion providers could challenge the constitutionality of the law only by violating it and raising their objections as defenses.
A federal trial judge rejected a motion to dismiss the case and scheduled a hearing on whether to block the law. But the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, canceled the hearing.
The challengers said that they are at minimum entitled to a decision on whether the law ought to be enjoined. If the Supreme Court does not act, they wrote, “applicants and thousands of other Texans will be stripped of their fundamental constitutional rights on Wednesday without ever receiving a decision on their fully briefed request for a preliminary injunction.”
The Texas law is one of many efforts to limit abortions enacted in recent years in states controlled by Republicans. In 2021, state legislatures set the record for the most abortion restrictions signed in a single year in the United States, according to the Guttmacher Institute, which compiles data on abortion statistics and supports abortion rights.
The Supreme Court has in the meantime become more conservative and now includes three members appointed by President Donald J. Trump, who had vowed to name justices prepared to overrule Roe v. Wade. The court will hear a major abortion case this fall concerning a Mississippi law that bans abortions after 15 weeks and amounts to a direct challenge to Roe.
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